Oregon State Bar Bulletin — NOVEMBER 2009

Exalted Principle?
Edward Fadeley admonishes us that “opposition to Judge Sotomayor seemed all partisanship, but disguised as selfless principle” (Letters, August/September 2009). Doubtless Fadeley will permit the inference that exalted principle underpinned Sotomayor’s support. In view of President Obama’s reported gatekeeping directive, “white males need not apply,” I take it we may rest assured that the operative principle was something other than, “two wrongs don’t make a right.”

Peter Smith
Grants Pass

Birth Mothers Respond
Birthmothers deserve more attention than the passing reference Melody Finnemore gives to them in her article about adoption attorney Scott Adams (“Family Man,” June 2009): “… for every adoptive parent who gains a child there is a birth parent who places one.” This is far too dismissive a reference to the women who actually bear the children.

Because women who lost children to adoption are shamed into silence, much of the public has accepted the idea that the experience was a positive solution for their untimely pregnancies. Yet for most of them, the truth is far different. Numerous studies and the memoirs of these women show that surrendering a child leads to lives of unresolved grief.

Despite this, Oregon law is titled against the woman who bears the child and towards the adoptive parents. These mothers are often without resources and financial support. Although the right of parents to nurture their children is protected by the due process clause of the 14th Amendment, Troxel v. Granville, 530 U.S. 57 (2000), the law encourages them to make hasty, ill-informed decisions with no right to undo them.

Immediately after the mother leaves the delivery room, she may sign the consent form as well as an agreement (ORS 418.270(4); 109.312(2)) giving up her right under Oregon law to rescind her consent within six months absent fraud or duress. No woman can appreciate her loss until she has given birth and has had time to internalize the consequences of surrendering her child.While Oregon courts prohibit attorneys from representing both prospective adoptive parents and natural parents, the adoption agency or the prospective adoptive parents’ attorney often refers an attorney to the natural mother, and pays her bill. The mother’s attorney becomes a facilitator to see that the adoption progresses as planned. To assure independence of counsel, we recommend that a funding source such as a surcharge on adoption-petition filing fees pay Legal Services or similar organization to represent parents considering adoption.

Open adoption agreements, thought to provide some relief to adoption trauma for mothers and their children, are hard to enforce. Failure of adoptive parents to abide by the agreement does not nullify the adoption, ORS 109.305. If adoptive parents cut off contact and refuse to participate in mediation, or if mediation is unsuccessful, birthparents must initiate a court action to obtain relief, pitting them against adoptive parents who most likely have greater financial resources. And of course, adoptive parents wishing to close the adoption can simply disappear into another community, another state, another country.

We want a world where all children are cherished. If families cannot with help care for their children, adoption is obviously the better alternative to growing up in an orphanage or in foster care. Adoptive parents we have known are loving people who are committed to the well-being of their children. However, the adoption industry today and the legal system surrounding it fails to protect vulnerable mothers and mothers-to-be, and thrusts too many children into the adoption mill when they need not be.

Jane Edwards, Portland
Lorraine Dusky, Sag Harbor, N.Y.

Editor’s note: Jane Edwards has been a member of the Oregon Bar since 1971 and is retired from the state of Oregon. Lorraine Dusky is the author of Birthmark (1979); Still Unequal: The Shameful Truth About Women and Justice in America (1996) and other works. Both surrendered daughters to adoption and are reunited.

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